December 19, 2014

Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))

Headnote

The court considered a medical provider's appeal from an order granting a motion for summary judgment dismissing its complaint. The main issue was whether the insurance company had properly tolled its time to pay or deny the claims, as required by law. The court held that the insurance company failed to establish, as a matter of law, that it had properly tolled its time to pay or deny the claims, and therefore was not entitled to summary judgment dismissing these causes of action. The court also held that the insurance company untimely denied the claim upon which another cause of action was based, and therefore was not entitled to summary judgment on this cause of action. Finally, the court held that the affidavits submitted by the insurance company were sufficient to demonstrate that certain scheduling letters and denial of claim forms had been timely mailed, and as such, the insurance company was entitled to summary judgment dismissing these causes of action.

Reported in New York Official Reports at Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))

Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U)) [*1]

Flatlands Med., P.C. v Travelers Ins. Co.

2014 NY Slip Op 51856(U) [46 Misc 3d 133(A)]

Decided on December 19, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-891 K C

Flatlands Medical, P.C. as Assignee of CLEVIE GALL, Appellant, –
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 7, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that the claims underlying plaintiff’s first through sixth causes of action were denied well over 30 days after they had been received by defendant. Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, that it had properly tolled its time to pay or deny these claims (see 11 NYCRR 65—3.5 [b]). Consequently, defendant was not entitled to summary judgment dismissing these causes of action.

As to plaintiff’s seventh cause of action, defendant concedes on appeal that it untimely denied the claim upon which that cause of action is based and that, therefore, it is not entitled to [*2]summary judgment on this cause of action.

Finally, as to plaintiff’s eighth and ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the examination under oath scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As plaintiff raises no other issue on appeal with respect to these claims, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing these causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 19, 2014